Jeffrey Toobin November 17, 2016
Jeffrey Toobin is a staff writer at The New Yorker and a senior legal analyst for CNN. He has covered every major legal controversy and trial of the past two decades, ranging from the nominations of four Supreme Court Justices to the O.J. Simpson trial to the trials of Michael Jackson.
Before joining The New Yorker in 1993, he served as an Assistant United States Attorney in Brooklyn and an associate counsel in the Office of Independent Counsel Lawrence E. Walsh.
How long have you been covering the Supreme Court?
I started freelancing on legal issues while I was still in law school. I started writing for The New Republic and I then had my legal career, where I clerked and then was a prosecutor and wrote my first book about the Iran Contra investigation, which I was a part of. I then became an assistant US Attorney in Brooklyn and it was in 1993 that I went to work at The New Yorker. So, basically in 1993 I had had a foot in both worlds—I had written a book, I had done some freelancing, but I had also practiced law for about 6 years.
I’ve been a full time journalist ever since ’93. Early in my New Yorker career I started writing about the Supreme Court—I think my first big piece was about Clarence Thomas in about ’93 or ’94. And then I did that for years. In 2007, I published The Nine, my book about the Court. And in 2012, I published the sequel, called The Oath.
How has covering the court changed in that time?
Well, I think coverage has gotten better. I think probably the biggest change is the arrival of SCOTUSblog as a serious, credible, detailed source of information about the court. I think my friends Nina Totenberg and Adam Liptak do a great job, but they’ve always done a great job. And, the major difference is that educated and informed journalistic customers have this tremendous resource in SCOTUSblog that they didn’t have 20 years ago.
Why you think following the Supreme Court matters? Why do you think we should care?
The Supreme Court has the last word on many of the most crucial issues facing the country. One of my favorite quotes about the Supreme Court is from Robert Jackson who said, “We are not final because we are infallible, we are infallible because we are final.” In other words, somebody has to have the last word and I think the fact that Congress just doesn’t pass many laws anymore puts more pressure on the Court, especially in a time of divided government, to resolve controversies. And, you know, if you look at healthcare, gay rights, immigration, so many of those issues wind up before the Supreme Court.
What is missing from the coverage of the Court right now? What story goes untold?
Well, I think what people don’t realize is just how small, how intimate the workplace is. That in a government of hundreds of thousands of employees, there are many, many fewer than a thousand people who work at the Supreme Court, and many of them stay for years and years. There is a real intimacy among the people who work there. And it’s one of the things I like about it—that they really do know each other. There aren’t many places in the government or anywhere else where people work in the same place for decades, and that matters. That doesn’t make me agree with their decisions any more often, but I do admire the warmth and intimacy of the workplace.
Is there a need to reform the court?
I think certainly they should have at a minimum live audio, and of course live video as well. You know, it’s preposterous that there are no cameras in that courtroom. But it’s even more preposterous that there is no live audio feed. I can see certain plausible arguments against cameras. I can’t even entertain any arguments against live feeds of the audio of the arguments, that to me is just sheer cussedness on the part of the court. I also think it’s kind of amazing that our highest court can’t bestir itself to decide more than 75 cases a year. Their 9-month work schedule and 75 case work budget is not going to cause any of them to die of overwork, that’s for sure.
Do you have a favorite Supreme Court justice?
Can I pick David Souter? David Souter was such a great eccentric. He was a 19th century figure and such a man out of time in a wonderful way. He didn’t have a computer, he didn’t have a cell phone, he doesn’t like electric light, he eats the same thing for lunch every day, he has a cup of yogurt and an apple including the core. I just love the fact that he just didn’t seem to belong in modern American life, yet at the same time he was a wonderfully admirable justice.
What has been your most memorable moment covering the Supreme Court?
Oh, that’s a very easy question. Waiting on December 12th of 2000 to get the court’s decision in Bush v. Gore and then sprinting out to the camera positions in front of the court to try to decipher it on live television. Given the magnitude of the decision and the stakes involved, that was by far my most unforgettable experience at the court. I remember the way we had to line up and then Kathy Argburg handed out the decisions to each of us. And I remember on that freezing cold night, running out in a dead sprint to the camera positions and then madly leafing through it trying to figure out what it said and what it meant.
What does this year of political posturing over the Supreme Court and the lost nomination of Merrick Garland say about our system of nominating folks to the Supreme Court? Is it broken?
Well it’s always been highly politicized, but it is now more politicized than ever. We have one political party that is willing to bring the process to a halt for a year to protect a seat on the Supreme Court and I anticipate that if the Democrats get control of the Senate, unlikely though that may be, at the end of Donald Trump’s term, they will respond in kind.
Is this the new status quo?
I think so. At the moment, we’ve only seen the Republicans play hard ball and the Democrats, historically, have waffled on how much they want to play hard ball. But I think it’s likely that the arms race will continue.
Prior to November 8, 2016: Do you have any predictions for this term?
The Democratic senators want Hillary Clinton to re-nominate Merrick Garland. And, I think she will, if she wins. It will not be a cake walk for her to get anyone confirmed, but I think Garland has the best chance. Clinton will have a lengthy agenda of matters that she wants the Senate to consider, and a fight over a different nominee will soak up all the energy in the Senate. I just don’t think she will ultimately want to do that.
After November 8, 2016: Do you have any predictions for this term?
You know, if there’s anything to be learned from the experience of 2016, it’s that people like me should make fewer predictions, not more.